A No Know

The Minnesota Supreme Court vacated an admonition on finding no violation of Rule 3.4(c).

The court recites at length the communications between the lawyer and client/complainant and found no knowing violation had been proven in his failing to respond to a summary judgment motion

Rule 3.4 required the Director to establish by clear and convincing evidence that, considering all the circumstances, Attorney knew that he was disobeying Rule 115.03 when he did not file the summary judgment response before October 17.

Using that legal test, we hold that the panel clearly erred by concluding that Attorney knowingly disobeyed an obligation under Rule 115.03. The evidence in the record simply does not support that conclusion. The October 12 e-mails describe an understanding that Attorney “will not be filing anything in court or appearing” on C.G.’s behalf. Moreover, C.G. and Attorney each testified to an understanding that Attorney would not prepare or file any papers on behalf of C.G. (“the party” of Rule 115.03). This understanding followed several weeks of communication between the parties in which Attorney advised C.G. about the approaching filing deadline and C.G.’s failure to pay the retainer required under the Fee Agreement.

More critically, the parties’ understanding that Attorney would not file a response memorandum was consistent with C.G.’s express directives to Attorney that he not take action that incurred “litigation costs” beyond his efforts to reach a settlement with R.F. C.G. repeatedly instructed Attorney to focus on settlement and reminded Attorney that C.G. did not want to spend any money on any litigation: “If we didn’t have to spend any money, we weren’t going to spend it.” Until settlement efforts were exhausted and C.G. decided to further argue in court—something that did not occur until it was too late to comply with the due date for filing the summary judgment response—Attorney had no authority from C.G. to prepare or file a brief on C.G.’s behalf. See Minn. R. Prof. Conduct 1.2(a) (“[A] lawyer shall abide by a client’s decisions concerning the objectives of representation . . . .”). Thus, the record establishes that Attorney understood that he did not have an obligation to file a summary judgment response on October 17 and therefore did not knowingly disobey the district court’s October 17 deadline.

The panel applied a different legal standard in reaching its decision that Attorney violated Rule 3.4. The panel reasoned that it could ignore the circumstances surrounding Attorney’s failure to file a summary judgment response before October 17. By doing so, the panel impermissibly read the word “knowingly” out of Rule 3.4 and instead imposed a negligence or strict liability standard.

(Mike Frisch)